Director of Public Prosecutions v Dean

[2021] VCC 1899

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

KOORI COURT DIVISION

CR-21-00999

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEANU DEAN

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	19 October, 15 November & 22 November 2021
DATE OF SENTENCE:	22 November 2021
CASE MAY BE CITED AS:	DPP v Dean
MEDIUM NEUTRAL CITATION:	[2021] VCC 1899

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - sentence

Catchwords: Armed robbery – causing injury intentionally – lesser, complicit role in offending – diagnosed major depressive disorder and alcohol abuse disorder - victim suffered laceration to left ear, inflicted by co-offender – substantial and compelling circumstances, in combination, found to justify not making an order under Division 2 of Part 3 of the Sentencing Act 1991

Legislation Cited:                  Sentencing Act 1991; Crimes Act 1958

Cases Cited:   Bugmy v. The Queen (2013) 249 CLR 571;

R v. Verdins (2007) 16 VR 269;

Worboyes v. The Queen [2021] VSCA 169

Sentence:  Aggregate 12 months’ imprisonment, together with an

18-month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin (plea and sentence)	OPP Victoria
For the Accused	Mr P. Kelly (plea and sentence)	Verhoeven & Curtain, Gippsland Lawyers

HER HONOUR:

1Keanu Dean, you have pleaded guilty to one charge of armed robbery contrary to s75A of the Crimes Act 1958 (‘the Act’) and one charge of intentionally causing injury contrary to s18 of that Act. The maximum penalty for the offence of armed robbery is 25 years’ imprisonment. The maximum penalty for the offence of intentionally causing injury is 10 years’ imprisonment.

2The offence of armed robbery when committed in company, is a Category 2 offence, and accordingly s5(2H) of the Sentencing Act 1991 requires the court to impose a sentence of imprisonment (other than a combination sentence of imprisonment and a community correction order) unless one of the exemptions under s5(2H) applies. This provision, in addition to the maximum penalty, is a reflection of the seriousness with which Parliament views the offence of armed robbery.

3These offences were committed by you and a co-offender, Aaron Elias on 9 December 2020.  You were 26 years old at that time.  The victim in this matter is David Lapworth.  He was 51 years old and had never met either you or Mr Elias prior to that date. 

Circumstances of offending

4The circumstances of your offending are detailed in the prosecution opening, a copy of which was tendered at the plea hearing.  It is the agreed basis upon which you are to be sentenced. A summary of the offending is as follows. 

5In early December 2020, Mr Lapworth loaned his rental car, a white Ford Falcon to a friend, Aaron Daly.  On 9 December 2020, Mr Daly advised Mr Lapworth he had left the vehicle parked at an address in Murray Road Preston and that he had left the keys with a friend of his, Tammy Parsons who is also your sister.  You were living in Ms Parsons’ unit in Preston at that time. 

6Mr Lapworth arrived at the Murray Road address shortly after 2am, after receiving a text from Ms Parsons. He met Ms Parsons on Murray Road where she was standing near his car.  Ms Parsons then took him up to her unit.  Inside the unit, Mr Lapworth saw his car keys on the table and picked them up.  Ms Parsons then left the unit telling Mr Lapworth she was going out to get something. 

7After she left, Ms Parsons sent you text messages from her phone saying, ‘Stay there, wait for a sign, don’t come out yet and put the phone on silent’. 

8You and Mr Elias then came out of another room in the unit and confronted Mr Lapworth. One of you was holding a knife and the other was holding an item Mr Lapworth believed to be a razor.  While pointing the weapons at him, one of you said ‘Empty your pockets, give us your stuff and don’t call the cops’.  CCTV audio captured male voices saying, ‘I’m not fucking around, take the fucking watch off right now, give us your phone, dog, give us your phone’.  In response, Mr Lapworth handed over the key to his vehicle, his Samsung Galaxy mobile phone, his house key with a fob remote, $200 in cash and his Cisco brand watch. This conduct is the subject of Charge 1 - armed robbery. 

9You and Mr Elias then punched Mr Lapworth to the jaw approximately three times as he tried to get up to leave.  One of you then “sliced” Mr Lapworth causing a laceration and bleeding to his left ear.  This is the subject of Charge 2 - intentionally causing injury.

10Mr Lapworth was told to ‘get the fuck out’.  CCTV captures Mr Lapworth leave the unit, followed closely by Mr Elias who was shouting abuse at the victim, threatening him if he came back.  Mr Elias is then seen to return to the unit holding a metallic item in his hand.  At one point Mr Lapworth asked for his car keys and Mr Elias, who was on the balcony above him responded, ‘Fuck off cunt, I’m going to jump down and fucking cut your fucking throat’. The two of you were then seen to walk to the bottom level of the flats.  Mr Elias placed the stolen watch on his wrist.

11After leaving the unit, Mr Lapworth sought help at a house nearby and the occupants called 000.  Police attended at approximately 2.45am and Mr Lapworth was conveyed to the Austin Hospital where he received sutures for the laceration to his left ear.  Photographs of his injuries, showing the extent of the laceration were tendered in your plea hearing.

12At 12.15 pm, the police executed a search warrant at your address and you were arrested.  The police had earlier conducted a search of Ms Parsons’ property where they had observed a kitchen knife and a homemade shiv.  You were interviewed by police later that day.  During the course of that interview, you told police that you weren’t responsible for ‘slicing anybody’ and that this was done by your co-accused.  You said that when he did this, you sort of stepped back and that you were ‘in a state of shock’.

13You told police that the co-accused had told you of the plan to rob the victim and said he was going to stab him but that you had said, ‘No, no, none of that shit’.  You told police he was ‘not supposed to hurt nobody like that’.  You also denied punching the victim.  You told police you had been drinking since 6 pm that day.  Finally, you told police ‘I shouldn’t have been there.  I shouldn’t have had no part of it.  Even though I didn’t do anything violent or dangerous, I was still there.  So disappointed, I should have made the smartest decision’.

Personal circumstances

14I turn now to your personal circumstances and background.  You were born in Moe on 9 July 1994.  Your mother, Kellie Parsons is an Aboriginal woman. You lived with your mother until you were 14 years old.  You had virtually no contact with your father, a Torres Strait Islander man who lived elsewhere in Moe.  You are the only child of that relationship.  Your mother re-partnered another Aboriginal man and you have a younger half-brother now 18 years old, who suffers from autism and a half-sister, Tammy, who is now 20 and was living in the apartment in Preston at the time of this offence.  Tammy also has ongoing drug addiction problems.

15Your upbringing was marked by significant dysfunction and deprivation.

16Much of this background is contained in the psychological report of Mr Bernard Healey dated 2 July 2021, that was prepared for the purposes of these proceedings.  Your step-father was physically and verbally abusive towards you and your mother.  In Mr Healey’s opinion, you lacked a stable male role model in your life.  You were exposed to alcohol abuse from an early age with both your mother and step-father drinking to excess.

17This led to significant arguments in the house when you were young.  Mr Healey says you understand that your mother suffered a major depressive illness, was possibly bipolar, and that her mental health remained untreated until she was medicated 10 years ago. 

18You left home at the age of 14 due to the dysfunctional family environment and lived on the streets until DHHS intervened.  You were then taken into residential care.  From that time you lived in youth residential units in Morwell until you turned 18 years of age.  During your time in residential care, you were not permitted any contact with your mother.

19After you turned 18, you lived with your maternal aunt for a period and obtained a flat in Morwell with the assistance of VACCA.  You have remained in contact with your mother since that time.  Your mother ceased drinking alcohol seven years ago and now lives alone in St Kilda.  Ms Parsons suffers from significantly poor health, including a chronic obstructive pulmonary disease (emphysema) and gastroesophageal reflux disease.  A letter from her doctor dated 27 October 2021, tendered in the plea, confirms she was diagnosed with a bipolar affective disorder in 2017.

20Your mother now requires live-in assistance which she hopes you will be able to provide as she awaits NDIS assistance.  She is estranged from her daughter due to her daughter’s drug addiction issues and her other son’s autism means he is unable to provide the assistance she needs. 

21You completed primary school at Morwell Park and then attended a specialist school for children with adjustment and behavioural problems.  You then went to Morwell Koori TAFE and secured certificates in literacy and numeracy and undertook Aboriginal artwork.  However, you have no history of employment and have been in receipt of Centrelink payments most of your adult life. 

22You began drinking alcohol to excess from a very early age.  By the time you were 14, you were drinking to the point of severe intoxication several times a week by consuming spirits, Jack Daniels and Wild Turkey whiskey.  This pattern of alcohol abuse continued throughout your life until your recent remand.  At one point in your mid-adolescence, you were hospitalised for alcohol poisoning. 

23You told Mr Healey you have experienced multiple blackouts associated with your alcohol abuse.  You have also suffered significant blows to the head caused by falling of motor bikes as well as being victim to assaults including being struck with steel bars and other objects. Despite this, you have never received a neuropsychological assessment.

24You began smoking cannabis between the ages of 14-15 and by the age of 16-17, you were regularly smoking two to three grams of cannabis daily.  This pattern also continued until your recent remand.  In the last two years, you have also smoked methylamphetamine at least once a week. 

25When you were 18 years old, you had a significant relationship with an Aboriginal woman although you never lived together.  You have two daughters aged eight and four and a son aged six with her. The children live with their mother who has no history of drug or alcohol abuse.  You are welcome to visit the children when you are not under the influence of drugs or alcohol.  You are motivated to spend more time with your children. 

26You admitted a prior criminal history that commenced in the Children’s Court in 2012.  In November 2014, you were sentenced to a six month community correction order for offending that included intentionally causing injury and dishonesty offences.  In April 2016, you were sentenced to a combination of 21 days imprisonment and a 12-month CCO for offences that included unlawful assault, threat to kill, assault with a weapon and contravening a family violence intervention order.

27In October 2017 you were sentenced to a combination of 20 days imprisonment and a 12-month CCO for three charges of unlawful assault, contravening a family violence intervention order and dishonesty and driving offences.  You have been found in contravention of CCOs in 2017 and 2020.  In November 2020, you were sentenced to 59 days’ imprisonment for assaulting and resisting an emergency worker and contravening a family violence intervention order.  You have no prior conviction for armed robbery.

28You had been released from custody following the last sentence on 30 November 2020.  Concerningly, this offence occurred nine days later.  You were remanded following your arrest and as at the date of the plea, had been held on remand for 314 days.  This is significantly longer than any previous time you have spent in custody. 

Mental health

29I turn now to your mental health and cognitive issues.  Mr Healey in his report dated 2 July 2021, assessed you as having continuing problems with depression for which you are currently prescribed medication. 

30He states you have suffered depression for a long period of time.  You have been prescribed the antidepressant Avanza in the past but have not been compliant with the medication regime.  Mr Healey states that your depression is ongoing but has reduced in intensity through the regular use of antidepressants whilst in custody.  However, he states you are low in spirits and that you ‘just sit for long periods of time looking into space viewing himself as unworthy’. 

31Mr Healey assessed other intrusive thoughts to be attributable to your severe withdrawals from alcohol abuse and suffering alcoholic hallucinations. 

32Mr Healey also conducted an assessment of your intellectual functioning and assessed you with a full scale IQ of between 75 to 85, sitting between the fifth and 16th percentile where 84 to 95 per cent of others in the community would perform better.  I have taken this into account in sentencing you.

33In his supplementary report dated 28 October 2021, Mr Healey states you have suffered from serious depression since your late adolescence and have also had an alcohol abuse problem of considerable seriousness from your mid-teens.  Mr Healey diagnosed you as suffering from a major depressive disorder, a drug abuse disorder and alcohol abuse disorder combined with clinically significant intrusive thoughts and images in the context of your severe withdrawals from alcohol abuse.

34As to the impact of custody on these conditions, Mr Healey expressed the opinion that custody ‘did not alter the presence of these disorders’ but ameliorates their manifestation because you no longer have access to alcohol or illicit drugs and are in regular receipt of antidepressant medication.  Nonetheless, he states that any continued incarceration has the potential to increase your depressive outlook and exacerbate your major depressive disorder which is now subdued by medication.  Mr Healey concludes that your disorders and their legacy will make your time in prison more burdensome than that experienced by others without your disorders.

Submissions of the parties

35Mr Kelly, who appeared on your behalf, submitted that one or more of the exemptions under s5(2H) apply to your case and that a combination sentence of imprisonment and a lengthy community correction order should be imposed.

36Whilst accepting that the offence of armed robbery is an inherently serious one, Mr Kelly submitted the following factors operate in mitigation of sentence and to reduce your moral culpability for the offending.

37First, although complicit in the offending, the role you played was a lesser one. In particular, it is accepted by the prosecution that you were not the offender who inflicted the injury to the victim’s ear with the use of the knife. Secondly, your early plea of guilty entitles you to a significant sentencing discount of even greater utility in the wake of COVID-19. Thirdly, your difficult and traumatic childhood enlivens the principles in the authority of Bugmy[1]. Fourthly, your participation in a very difficult and confronting sentencing conversation before your Elders in Koori Court, and finally the burden of imprisonment, particularly in light of your diagnosed major depressive disorder.

[1]Bugmy v. The Queen (2013) 249 CLR 571

38On the basis of Mr Healey’s assessment, Mr Kelly argued that your major depressive order will result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment and that accordingly, the exemption in s5(2H)(c)(ii) applies.

39Alternatively, Mr Kelly submitted there are substantial and compelling reasons that in combination, are exceptional and rare that justify not imposing the mandatory detention provision.  This includes your dysfunctional childhood and the application of the Bugmy principles to your sentence, your long-standing mental health disorders, the fact your depressive condition could deteriorate in custody and that your mother’s poor state of health is an added burden of your detention.

40The prosecution submissions highlight the prevalence of the offence of armed robbery and hence the paramount sentencing principles of general deterrence denunciation and protection of the community.  The prosecution argue that the evidence of Mr Healey falls short of the threshold required to establish the exemption under s5(2H)(c) and that even in combination, the factors do not meet the high hurdle created by the legislation for the court to find substantial and compelling reasons that are exceptional and rare to overcome the mandatory imprisonment provisions.

41Even if this test is satisfied, the prosecution argues a sentence involving a community correction order would fail to adequately reflect the gravity of this offending, particularly in light of your prior convictions for offences involving violence. 

Sentencing considerations

42In written submissions that were expanded upon at the plea hearing, both counsel highlighted a number of matters they submit should be given weight in the sentence I imposed.  I have taken each of these matters into account.

43First, and significantly, is your plea of guilty.  It is accepted by the prosecution that your plea was entered at an early state and has significant utilitarian benefit. In pleading guilty at the committal mention stage, you spared the victim the ordeal of giving any evidence in court and the community the time and expense of running a trial.  The value of your plea is heightened against a COVID-19 background where an early guilty plea carries an even greater weight in mitigation than a similar plea entered in other times. 

44Your plea is also indicative of remorse.  I accept there are other indications of remorse in your case.  First, upon your arrest in your interview with police, you said you were disappointed and that you shouldn’t have played any role in the offending, that you should have made the smarter decision.

45You also told Mr Healey that you were berating yourself for your role in the offending and were concerned about the impact on the victim.  While you were not entirely forthcoming in the police interview, I accept, as does the prosecution, that you have accepted responsibility for your offending through your plea, and have demonstrated genuine remorse in your extensive admissions to police and in your discussions with Mr Healey.  Your guilty plea, in all the circumstances, entitles you to a significant sentencing discount.

46In the decision of Bugmy, the High Court explained the relevance of childhood deprivation to a sentencing decision.  As the High Court stated:

‘The experience of growing up in an environment surrounded by alcohol abuse and violence, may leave its mark on a person throughout life.  Among other things, a background of that kind, may compromise a person’s capacity to mature and to learn from experience.  It is a feature of a person’s make-up and remains relevant to the determination of the appropriate sentence’.

47It is no overstatement to characterise your upbringing as one marked by significant dysfunction and deprivation.  In the context of your mother and step-father’s alcohol abuse, you were exposed to family violence in your formative years.  Your childhood was impacted by neglect, your mother’s poor mental health and exposure to alcohol-fuelled violence.  

48At the age of 14, you were living on the streets.  After DHHS intervened, you were placed in residential care and were allowed no contact with your mother.  This remained the case until child protection involvement ceased when you turned 18.

49Mr Healey’s opinion is that your mother’s alcoholism and mental health disorders impacted on you ‘through conditioning in your formative years’.  I accept that this background of significant disadvantage attracts the Bugmy principles and that your moral culpability for these offences is less than that of an offender whose formative years have not been marred in this way.  You are entitled to moderation in the sentence I impose, having regard to these principles.  General and specific deterrence are both given less weight in sentencing you having regard to these matters.

50This is your first lengthy period of time in custody.  It is notable that your time on remand has run parallel to the COVID-19 pandemic and the significant restrictions put in place in custody to manage the risks associated with the pandemic.  These have included increased lockdowns and isolation to act as a form of quarantine, and limits on face-to-face contact with family and restricted access to other programs.  I accept this has made your first substantial period in custody more difficult and stressful.

51There have been compounding elements to this additional burden.  First, in Mr Healey’s opinion your mental health disorders and their legacy makes your experience of custody more burdensome than that experienced by other prisoners.  I accept that limb 5 of Verdins[2] is enlivened and have taken that into account in sentencing you. 

[2]R. v. Verdins (2007) 16 VR 269

52Secondly, as was apparent from her attendance at the sentencing conversation in the Koori Court, your mother Ms Parsons is extremely unwell and whilst it is not argued her illness constitutes exceptional circumstances, her deteriorating health is an obvious cause of distress and anxiety for you and makes your time in custody more difficult, especially in the current circumstances.

53Mr Kelly highlighted that whilst video conferences have been permitted during COVID-19 restrictions, your mother and family members are not technically proficient to manage this form of communication.  As a result, Mr Kelly says you have not spoken with family since being in custody.  Further, you have been unable to attend funerals and to participate in sorry business for extended family who have passed away whilst you have been in custody.  Each of these matters have compounded the difficult experience of custody for you and I have had regard to these matters in mitigation of sentence. 

54You participated in a very difficult and confronting Koori sentencing conversation at Morwell on 19 October 2021.  As part of that sentencing conversation, not only was your offending discussed with the two Aboriginal Elders who participated, but your mother attended and discussed the impact of your offending on her.  This was a demonstrably distressing conversation for you. 

55Your mother is clearly unwell and made an enormous effort to demonstrate her support for you by travelling to Morwell to participate in the sentencing conversation.  It is apparent to me that both you and her believe she does not have long to live.  One Elder who has known you and your family a long time, expressed his disappointment in seeing you come before the court, having previously seen you do well at Wulgunggo Ngalu.  Both Elders emphasised the important contribution you could make to your community in the future. 

56As the various authorities have made clear, meaningful engagement in the Koori Court sentencing conversation can operate as a mitigating circumstance.  Through this process you have faced the shaming that was particularly acute for you and remained accountable for your offending throughout this process.  Participation in Koori Court is more burdensome than a traditional plea hearing.  Rather than having counsel speak on your behalf, you voluntarily participated in the sentencing conversation and expressed an intention to reform and to care for your family.

57I find your participation was genuine and whilst you were often quiet, you engaged in a sincere and respectful manner towards your Elders.  I have taken your participation in the sentencing conversation into account in moderating the sentence I impose and in reducing to some degree the need for the sentence to operate as a specific deterrent to you. 

58The offence of armed robbery is objectively serious.  There were a number of features of this offending that aggravated the offending.  There was a degree of premeditation or pre-planning and coordination, with the victim being lured to attend the Preston unit to recover his car keys while your sister communicated with you by phone after she had left.  You and the co-accused lay in wait for the victim to arrive.  Once your sister left the unit, the two of you made demands for his belongings, armed with weapons.

59After handing over his items, including the keys to the vehicle, the two of you did not desist, but rather proceeded to punch the victim three times to the jaw.  The victim did nothing to provoke this attack.  The knife attack that followed was particularly nasty, requiring surgical repair.  Although you were not the principal offender in respect of the injury offence, the law regards a person who is complicit as equally guilty of the crime and subject to the same maximum penalty.  This could not be described as a low level armed robbery, but I accept it as not in the worst category either.

60As emphasised by your counsel, the offence did not involve the use of firearms and was of relatively short duration.  I accept it was not particularly sophisticated offending.  Further, I accept, as did the prosecution, that you were not the primary offender, that you were never found in possession of the victim’s items; his watch was found on the co-accused and it was not you who subsequently threatened and yelled abuse at the victim.  Nonetheless, your moral culpability for the offending is significant.  Your counsel accepted there is no basis to reduce your moral culpability based on Verdins considerations.

61No victim impact statement has been provided, but it is clear this must have been a frightening experience for the victim. 

62Undoubtedly, your prospects of rehabilitation are intrinsically linked to your ability to manage your mental disorders in the community, in particular your diagnosed alcohol abuse disorder.  In order to consider all sentencing options, the plea was adjourned for you to be assessed by Corrections.  In the assessment report dated 19 November 2021, Corrections note that you completed a 64-hour community work permit in November 2013 and a CCO in 2014, during which you successfully completed the Wulgunggo Ngalu Learning Place program.

63However, you contravened two further CCOs in 2017 and 2020 for non-compliance and further offending.  On both occasions the breach was proved and the order confirmed with no further orders made.  It is also relevant that prior to this offending you had only recently been released from remand where your sentence had previously been deferred.  You told Corrections you were under the influence of alcohol at the time of this offence and that you ‘were in the wrong place at the wrong time’.

64It is positive to note that in the past where you have been given the opportunity to engage in culturally appropriate treatment programs, such as Wulgunggo Ngalu you have successfully completed them.  I accept that this lengthy and difficult period on remand will operate as a specific deterrent against future offending, noting it is the longest period you have been drug and alcohol free.  You impress me as genuine in your desire to assist your ill mother and to remain abstinent from drugs and alcohol.  Nonetheless, my assessment of your prospects of rehabilitation can only be assessed as fair unless you can sustain your abstinence from alcohol and drugs in the community. 

65In this regard, treatment in a residential facility is sensibly recommended by Mr Healey and I note you have agreed to be assessed for further placement at Wulgunggo Ngalu if sentenced to a community correction order as a component of your sentence. 

66As stated, the mandatory imprisonment provisions of s5(2H) of the Sentencing Act 1991 apply unless you fall within the exemptions provided by the legislation. The first exemption relied upon by Mr Kelly is s5(2H)(c) which requires you to prove on the balance of probabilities that your impaired mental functioning would result in you being subject to ‘substantially and materially greater than the ordinary burden or risks of imprisonment’.

67In support of that submission, Mr Kelly relies on the reports of Mr Healey, in particular his supplementary report where he expresses the opinion that continued incarceration has the potential to increase a depressive outlook and exacerbate your major depressive disorder which is subdued by regular medication intake.  However, elsewhere in Mr Healey’s supplementary report, he states your disorders are ameliorated in their manifestation, in part due to receipt of antidepressant medication.  In his initial report dated 2 July 2021, Mr Healey stated that your continuing problems with depression were ‘reduced in intensity’ due to this medication.

68In the circumstances, I am not satisfied on the balance of probabilities that your mental health disorders, in particular your major depressive disorder places you at substantially and materially greater than the ordinary burden or risk of imprisonment based on Mr Healey’s assessment.  I certainly accept that your depressive disorder is ongoing and is only ameliorated and not extinguished by regular medication.  However, I cannot be satisfied that the possibility of an increase in your depressive outlook meets the legislative hurdle imposed by this provision.

69In contrast, however, I am satisfied that there are substantial and compelling circumstances that in combination are exceptional and rare and justify a departure from the mandatory imprisonment provisions, whilst having regard to the factors to which I must turn under s5(2I) of the Sentencing Act 1991. 

70In combination, these factors include firstly, your background of significant disadvantage and deprivation and the application of the Bugmy principles in moderation of your moral culpability, and secondly, the lesser role you played in the offending as conceded by the prosecution and your genuine remorse for the role you did play.

71Thirdly, the fact your plea was entered at a time where the backlog of trials in the wake of the pandemic entitles you to an even greater sentencing discount than ordinarily, for the reasons articulated by the Court of Appeal in Worboyes[3]. In other words, the plea attracts a discount beyond the benefit ordinarily applying to a guilty plea in these unprecedented circumstances.

[3]Worboyes v. The Queen [2021] VSCA 169

72Fourthly, the burden of your imprisonment is significant for combination of reasons. This includes the compounding effect of your diagnosed major depressive disorder and the additional stress of your mother’s chronic ill-health during your time in custody - particularly where COVID-19 restrictions limit any meaningful contact.

73Finally your participation in a difficult and confronting sentencing conversation in the Koori Court which itself operates in mitigation of sentence and is a further factor to which I have had regard.

74For these reasons, in combination, I find the exemption in s5(2H)(e) of the Sentencing Act 1991 applies. Together, they are exceptional and rare and justify, in my view, a departure from the mandatory sentencing provisions.

75Your co-accused is yet to be sentenced.  As stated, I accept you played a lesser role in the offending.  Relevantly, you were not the offender who used the weapon and inflicted the wound to the victim.  However, you did more than encourage the co-offender by your presence.  You were a participant in the armed robbery and the physical assault on the victim, although I do accept yours was a lesser role.  The sentencing considerations of general deterrence, although moderated for the reasons I have indicated, denunciation and community protection, are to be given weight in the sentence I impose.  Others must be deterred from similar offending.

76Although you are no longer a young offender, your rehabilitation remains an important consideration.  I do not consider your prospects of rehabilitation to be extinguished.  Community protection is also achieved where rehabilitation is achieved.  In my view, these sentencing considerations are best balanced by the imposition of a combination sentence of imprisonment, followed by a lengthy community correction order.  You have been assessed as suitable for a further community correction order.

Sentence

77Balancing the various considerations to which I have referred, you are sentenced with conviction to an aggregate sentence of 12 months’ imprisonment, followed by a community correction order of 18 months’ duration on Charges 1 and 2. An aggregate sentence for both charges is available pursuant to s9 of the Sentencing Act 1991 as they are founded on the same facts and arose out of the one incident of offending.

78Pursuant to s18 of the Sentencing Act 1991, I declare 348 days of pre-sentence detention as already served under this sentence.

79It is a condition of the community correction order I impose, that you be supervised by a Corrections officer and that you be assessed for mental health, drug and alcohol treatment and if assessed as suitable, that you undertake all treatment as directed.  It is a further condition of the community correction order that you be assessed for participation in the program offered by Wulgunggo Ngalu Learning Place and if assessed as suitable, that you participate in this highly regarded and culturally appropriate program to reduce the risk of future offending.

80At least initially, I propose to judicially monitor your compliance with the order with you to appear before me on 22 February 2022 at 9.30 am.  The length of this order is designed to maintain your support in the community, thereby fostering your prospects of rehabilitation and indeed the community’s protection which will naturally follow.

81In addition to the conditions I have imposed, there are standard conditions.  First and foremost, you must not commit any other offences punishable by imprisonment whilst subject to the CCO.  You must report within two working days of your release to the nearest Community Corrections office.  You are required to advise your supervising Corrections officer of any change of address, and you must do so within two clear working days.  It is a term of all community correction orders that you must submit to visits as directed and you must obey all instructions and directions of your Corrections officer.  You are not able to leave the State of Victoria without prior permission of your supervising Corrections officer.

82Mr Dean, in my view, this order presents with one last chance to address your drug and in particular, alcohol issues and to maintain the abstinence you have achieved whilst in custody.  You are being given a further opportunity to change your life in a positive fashion and to accept the support that should be made available to assist you.  You should be aware the order can be breached if you do not comply with the conditions of the order or if you re-offend while it is place.

83If you do so, you will have to come back before me for breaching the order.  I may have to re-sentence you on the charges and may have to sentence you for breaching the order. 

84Finally, I make the disposal order sought by the prosecution noting it is not opposed. 

85Pursuant to s6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, but been found guilty following a trial, the sentence I would otherwise have imposed, would be a sentence of three years imprisonment with a non-parole period of two years three months.

86Are there any questions from counsel?

87MR DEVLIN:  Not from the prosecution, Your Honour.

88HER HONOUR:  Thank you, Mr Devlin.  Mr Kelly?

89MR KELLY:  Only, Your Honour, that I suppose Mr Dean will somehow to have sign the order and I wouldn’t mind seeing a copy of it beforehand.

90HER HONOUR:  Yes.  So I will certainly ask Mr Dean to confirm he agrees to the making of that order verbally so that I can note that.  What will then happen, is a copy of the order will be forwarded to the parties but sent through to Mr Dean for his signature at the prison.

91MR KELLY:  Thank you, Your Honour.

92HER HONOUR:  The only other matter I do wish to raise is this question of neuro-psychological assessment and I do most particularly for the benefit of Corrections.  When the matter comes back before me for judicial monitoring, I will request that that this be explored by Corrections to see whether an assessment can be undertaken during the life of the community correction order.  I note actually that Corrections is available today.  Perhaps that’s something that I could ask Corrections to raise.

93Is that something Ms Perifanos, that can be considered during the order, the referral ‑ ‑ ‑ 

94MS PERIFANOS:  Yes, Your Honour.

95HER HONOUR:  That’s excellent.  Thank you.  All right.  There being no other issues, Mr Dean, it is Judge Chambers speaking.

96OFFENDER:  Yep.

97HER HONOUR:  Can I just confirm that you agree to the community correction order that I have just imposed?

98OFFENDER:  Yep.

99HER HONOUR:  All right.  As I said, Mr Dean, a copy of that order will be sent through to the prison for you to sign.

100OFFENDER:  Yep.

101HER HONOUR:  But we will make sure that your lawyer sees that so he can give you advice before you do sign it.

102OFFENDER:  Yep.

103HER HONOUR:  All right.  Thank you.  We will now adjourn the court, and Mr Dean, you will come back before me for what’s called judicial monitoring.  I will receive a report about your progress under the community correction order and I will speak to you about your progress under that order on 22 February next year at 9.30 am.

104OFFENDER:  Yep.

105HER HONOUR:  We will let you know, Mr Dean, before that date whether that is a hearing that will be an online hearing, that means you appear remotely or whether you will need to actually come into the court.  But we will let you know that before that date.

106OFFENDER:  Yep.  Um, just a quick question.  Um, so what actually happened today?  Am I going to be released?

107HER HONOUR:  So what I will do is, I will stand down and ask Mr Kelly to speak with you confidentially.

108OFFENDER:  Yep, yep.

109HER HONOUR:  So that he can explain that very clearly to you.  All right.

110OFFENDER:  Yep.

111HER HONOUR:  Thank you.  If you could adjourn the court and ensure that Mr Dean can speak confidentially with Mr Kelly.  Thank you.

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